United States v. Tomero

November 27, 2006

UNITED STATES OF AMERICA,v.JOHN TOMERO, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Lewis A. Kaplan, District Judge

MEMORANDUM OPINION

Thirty-four defendants are charged with various criminal acts associated with the operations of the Genovese organized crime family. Ten move to suppress conversations intercepted by listening devices, colloquially known as "roving bugs," installed in cellular telephones.

Background

A. The Investigation

1. The Traditional Intercepts

The indictment stems from a three-year investigation into the criminal activity of members and associates of the Genovese organized crime family. The investigation initially focused on the crew of John Ardito, a high-ranking member of the family. The FBI learned from cooperating witnesses that Ardito's crew met regularly at a restaurant called Brunello Trattoria in New Rochelle, New York, to conduct family business. In December 2002, the Honorable Barbara S. Jones of this Court authorized the interception of oral communications of Ardito and other subjects at this location.

The intercepted conversations revealed that Ardito and his crew met at three additional restaurants, in part because they were suspicious of law enforcement surveillance. The government applied for, and Judge Jones authorized, the interception of conversations at these three restaurants as well as continued interception at Brunello Trattoria. In July 2003, however, Ardito's crew found the listening devices in three of the restaurants and became even more wary of surveillance whenever they returned to their usual meeting places.

2. The Roving Intercepts

a. Ardito's Cellular Telephone

Based on physical surveillance and the conversations previously intercepted, the FBI learned that Ardito's crew no longer conducted meetings exclusively at the four restaurants, but met also in twelve additional restaurants, automobiles, Ardito's home, an auto store, an insurance office, a jewelry store, a doctor's office, a boat, and public streets.

The government applied for a "roving bug," that is, the interception of Ardito's conversations at locations that were "not practical" to specify, as authorized by 18 U.S.C. § 2518(11)(a). Judge Jones granted the application, authorizing continued interception at the four restaurants and the installation of a listening device in Ardito's cellular telephone.*fn1 The device functioned whether the phone was powered on or off, intercepting conversations within its range wherever it happened to be.

b. Peluso's Cellular Telephone

By February 2004, the government had learned that Peter Peluso, an attorney and close associate of Ardito, was relaying messages to and from high-ranking family members who were wary of government listening devices and who used Peluso as a messenger to avoid meeting together directly. In a renewal application dated February 6, 2004, the government sought, and Judge Jones in due course granted, authority to install a roving bug in Peluso's cellular telephone.*fn2 This order was renewed several times throughout 2004, as the government continued to identify locations where Peluso and Ardito discussed family matters and learned that the subjects were growing increasingly cautious of government surveillance.

In January 2005, Peluso agreed to cooperate with the government's investigation. At that point the government removed the listening device in his cellular telephone and Peluso began recording conversations with family members consensually by wearing a microphone. On July 7, 2005, Peluso pleaded guilty, pursuant to a cooperation agreement with the government, to a four-count information, charging him with, among other things, engaging in a pattern of racketeering activity.

3. This Motion

By the conclusion of the investigation, the government had intercepted hundreds of hours of Ardito's and Peluso's conversations with each other and with other defendants, including Claudio Caponigro, Pasquale De Luca, Albert Faella, Albert Facciano, Gerald Fiorino, Walter Galiano, Salvatore Larca, Vincent Russo, and Albert Tranquillo, Jr.

On February 14, 2006, a grand jury returned a 42-count indictment charging 32 defendants with wide-ranging racketeering crimes and other offenses spanning more than a decade. On April 3, 2006, the grand jury returned a 45-count superceding indictment naming two additional defendants. Defendants now seek suppression of the ...

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